Court to review legal docs on NSA wiretapping in secret

A federal judge is ordering the Justice Department to hand over ten documents …

Civil liberties groups Friday won a small victory in their ongoing attempt to compel the release of documents outlining the legal basis for the controversial program of warrantless wiretaps launched by the National Security Agency in the wake of 9/11. A federal district court ordered the Justice Department to turn over 10 documents from the Office of Legal Counsel for in camera review to determine whether they must be released under the Freedom of Information Act.

The Electronic Privacy Information Center and American Civil Liberties Union had both filed suit under the Freedom of Information Act, seeking records that would reveal the legal reasoning employed by government attorneys to bless the extrajudicial NSA program's circumvention of the Foreign Intelligence Surveillance Act. And when the Justice Department sought to withhold many of these documents on national security grounds, the groups specifically challenged the basis for withholding 30 documents, urging the court to examine these documents in chambers and determine whether they were legitimately exempt from disclosure. In Friday's opinion, Judge Henry Kennedy Jr. of the US District Court for the District of Columbia agreed to do just that with 10 of the contested documents, ordering DOJ to submit them to the court by November 17.

The court sided with the Justice Department with respect to the other 20 documents, finding that its confidential briefings had satisfactorily established that the records fell under one of several exemptions to FOIA, which protect privileged communications and sensitive information that could harm national security if released. In several instances, the judge described the civil liberties groups' objections as "without merit." These included 7 documents pertaining to the president's reauthorization of the "Terrorist Surveillance Program" deemed too sensitive for even partial release, an OLC memo covered by an exemption for "presidential communications," and 12 documents from the Federal Bureau of Investigation describing how the program had aided the Bureau in counterterror investigations.

In the case of the ten OLC opinions to be reviewed by the court, Judge Kennedy rejected the notion that the administration's national security claims should be viewed with additional suspicion, since the existence of the TSP had already been acknowledged by the government. But the judge was persuaded that DOJ had failed to establish, even in its secret briefings, the claim that the sensitive information in the opinions was not "segregable." If a document sought under a FOIA request contains classified information, the government is supposed to release a redacted version with the classified bits blacked out, unless that information is so "intertwined" with the document as a whole that any intelligible version of the record would reveal secret details about the nature of the program.

"DOJ has now had two opportunities to provide this court with sufficiently detailed affidavits to describe why the documents at issue are subject to the claimed exemption, and why many documents must be withheld in full," wrote Kennedy. "DOJ's declarations are still lacking with respect to some of the withheld documents." In lieu of yet another brief, "this court will require DOJ to submit those documents for which it has not been granted summary judgment for in camera review."

The Foreign Intelligence Surveillance Act, recently amended to give intelligence agencies broader leeway to eavesdrop without acquiring full-blown FISA warrants, previously required a court order for the interception of any wire-based communication to which an American was party. Since the disclosure of the NSA program, the Bush administration has offered several justifications for the decision to ignore this requirement. Among these are the claim that the congressional authorization for the use of force against Al Qaeda implicitly created an exception to FISA for terror-related surveillance, and the argument that the president retains an authority to protect the nation from attack under Article II of the Constitution, which trumps the FISA statute.

If the court determines that any of the OLC documents are subject to release under FOIA, Americans may get a rare glimpse into the more detailed versions of those arguments—and perhaps others—on which the president relied.